The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2016),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Mr. Marchetti was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on August 30, 2008, and was issued law enforcement certificate number 278005. Mr. Marchetti was not employed by a criminal justice agency on October 30, 2016. On that date, in the early afternoon, Deputy Lawhorn was working as a road patrol deputy with Deputy Brewster, her field training officer (FTO), during an early phase of her training. The deputies arrived at 108 Petals Road in Fort Pierce in their marked patrol unit to serve an injunction for protection, a civil restraining order, directed to Timothy Marchetti. The deputies were to identify the person to be served, provide him a copy of the injunction papers, explain what the order required, and advise of the court date. The deputies knocked on the door, and Mr. Marchetti answered the door. The deputies, wearing St. Lucie County Sheriff's Office uniforms in plain view of Mr. Marchetti, announced that they were there to serve process on Timothy Marchetti and asked to speak with him. Mr. Marchetti falsely identified himself as his brother, Mark Marchetti, with a date of birth of September 15, 1983. Mr. Marchetti added that he was often mistaken for his brother. The deputies asked when Timothy Marchetti would be returning. Mr. Marchetti responded that Timothy was at church with his mother and should return shortly. The paperwork that the deputies had been provided prior to serving the injunction included a driver's license photo, and that photo appeared to match the individual the deputies were talking to. The paperwork also indicated that Timothy Marchetti had an identifying mark, a tattoo on his biceps. When asked to see his biceps, Mr. Marchetti instead showed the deputies his triceps, which had no tattoo. Believing that Mr. Marchetti had lied to them, but wanting to continue to investigate because sometimes brothers do bear close physical resemblance, Deputy Brewster asked Deputy Lawhorn to return to the patrol unit to run the name "Mark Marchetti" through the National Crime Information Center (NCIC) database. At the vehicle, she also pulled up a picture of Mark Marchetti from the DAVID website. That picture did not match the driver's license picture in the deputies' possession or the appearance of the individual that had answered the door. Deputy Lawhorn returned to the doorway, told Deputy Brewster what she had learned and asked him to check the information. After Deputy Brewster went to the vehicle, Mr. Marchetti attempted to leave. Deputy Lawhorn blocked his way and advised him that he could not leave. Mr. Marchetti had not yet been arrested. The deputies had a well-founded suspicion that Mr. Marchetti had lied to them about his identity, and they were continuing their investigation of that crime. At this point, a woman who identified herself as Mr. Marchetti's mother came to the property and encountered Deputy Brewster. She confirmed that the individual in the doorway was her son, Timothy Marchetti. Deputy Brewster returned to the doorway and advised Mr. Marchetti that he was under arrest. After his arrest, the deputies placed themselves on either side of Mr. Marchetti to handcuff him, and Respondent pulled away in "surprise or shock" as he was being handcuffed, but there was minimal, if any, active physical resistance. After his arrest, Mr. Marchetti apologized to Deputy Brewster for lying to him about his identity. Through his deception, Mr. Marchetti resisted, obstructed, and opposed Deputies Lawhorn and Brewster in their execution of legal process. Mr. Marchetti failed to maintain good moral character in that he willfully obstructed law enforcement officers in the lawful execution of their duty to serve an injunction against him by giving them a false name and date of birth. No evidence of any prior disciplinary history was introduced for Mr. Marchetti.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Timothy J. Marchetti in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of five days, followed by a one-year period of probation subject to terms and conditions imposed by the commission. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2019.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and was at all times material to the instant case, the holder of a Class "D" security officer license (Number D93-17516) issued by the Department. McRoberts Protective Agency, Inc. (hereinafter referred to as "McRoberts") is an agency that offers security services. For approximately one year and eight months (and at all times material to the instant case), Respondent was employed as a security officer by McRoberts. He was assigned to service the Antillean Marine Shipping (hereinafter referred to as "Antillean") account. His supervisor was David Bowling. Antillean demanded that McRoberts supply security guards who spoke both English and Spanish. Respondent met this requirement, although he was not fluent in English. Respondent and all other McRoberts security officers assigned to the Antillean account were given written post orders which they were expected to obey. Respondent received his written post orders prior to April 22, 1995. These post orders included the following: Security officers are not permitted to sit in their personal vehicles during their shift. There will be NO SLEEPING on duty. Personnel found sleeping will be fired on the spot. Roving officer must make key rounds every hour. Please note: If the officer does not make rounds, he will not get paid for that time. (Important) The only thing we asked of you is to do the job you were hired for and the client will be satisfied and there will be no problems. NO SLEEPING ON POST !! Excuses will not be accepted. POST Number 1: Security officer will be responsible for front gate. All vehicles entering terminal after hours (unless management personnel) will be stopped to identify occupants. Visitors to vessels (unless visiting captain or officers) will be required to remain at front gate until crewman is located. Rover (Post Number 2) will locate crewman. On April 22, 1995, while on duty at Antillean (at Post Number 1), Respondent was sitting in his personal vehicle in violation of the post orders. Bowling observed Respondent in the vehicle and issued him a Notice of Failing Performance (which is essentially a written reprimand) for having committed this violation. The notice contained the following "comments" made by Bowling: S/O was on property in his car (laying down in the back seat). He told me that he has been doing this for a year. 1/ I told him that Morales 2/ does not allow it. He agreed w/me that he knows better. On May 26, 1995, Bowling again observed Respondent in Respondent's personal vehicle while Respondent was on duty at Antillean (at Post Number 1). This time Respondent had his eyes closed and was apparently asleep. Accordingly, Bowling issued Respondent another Notice of Failing Performance, which contained the following "comments" made by Bowling: I arrived at 0515. C. Figueroa was inside his car asleep at Post 1. In accordance with McRoberts' written policy, Respondent was docked four hours pay for having been asleep while on duty. Respondent was angry at Bowling for having issued him the Notice of Failing Performance that had resulted in this loss of pay. On June 9, 1995, when Bowling approached Respondent and asked him to sign a log sheet, Respondent vented his anger by yelling at Bowling. Respondent accused Bowling of taking food out of the mouths of Respondent's children. Respondent then threatened Bowling by telling Bowling that he would see Bowling "on the streets" and that Bowling was not "going to live much longer." 3/ While making these threats, Respondent came close to, but did not touch, Bowling. He had no intention of actually harming Bowling, but Bowling nonetheless reasonably feared for his safety. Another supervisor was called to the scene and escorted Respondent away. Bowling prepared and submitted a written report describing the incident. Respondent's employment with McRoberts was subsequently terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent committed the three violations of subsection (1)(f) of Section 493.6118, alleged in the Administrative Complaint, and (2) disciplining him for having committed these violations by suspending his license for a period of two months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1996.
Findings Of Fact The non-teaching staff of the University of South Florida (USF) includes both the University Services Personnel System and the Administrative and Professional staff (A & P). The former is a career service personnel system that includes the prohibition against terminating an employee except for cause. A & P employees do not acquire tenure, and A & P employees can be "non- reappointed" at will, subject to applicable personnel procedures and, in the case of some A & P employees, subject to the provisions of a union contract covering those employees. The Petitioner's position is not covered by any union contract. Besides, the union contracts that cover some of the other A & P employees do not affect the "non-reappointment" of A & P employees. USF hired the Petitioner as a coordinator of student affairs on January 29, 1991. This position was and is part of USF's Administrative and Professional staff. It normally is a one-year contract of employment. The Petitioner's initial contract expired on August 6, 1991. The Petitioner's contract was renewed in August, 1991, and again in August, 1992. The last annual contract was to expire on August 8, 1993. On November 23, 1992, USF's Provost, Gerry G. Meisels, wrote the Petitioner a letter advising the Petitioner that USF would not be re-appointing him upon expiration of his contract on August 8, 1993. The letter included reasons for the decision not to re-appoint the Petitioner. The Petitioner's compensation continued through the remainder of his contract. The Petitioner filed a grievance pertaining to USF's notice of non- reappointment. After Step 2 of the grievance proceeding, the Petitioner requested administrative proceedings under Section 120.57, Fla. Stat. (Supp. 1992).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the University of South Florida, enter a final order dismissing the petition for administrative proceedings in this case. RECOMMENDED this 23rd day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1993. COPIES FURNISHED: Robert G. Walker, Esquire 1432 Court Street Clearwater, Florida 34616 Henry W. Lavandera, Esquire Assistant General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250 Gerry G. Meisels, Provost University of South Florida 4202 East Fowler Avenue, ADM 226 Tampa, Florida 33620-6100 Noreen Segrest, Esquire Acting General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Third Amended Order of Penalty Assessment (“Third AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Gregg Construction is a corporation engaged in business in the State of Florida. Gregg Construction has been operating as a business since November 9, 2007. William Gregg is the owner of Gregg Construction and its sole employee. The address of record for Gregg Construction is 166 Big White Oak Lane, Crawfordville, Florida 32327. On June 15, 2017, the Department’s investigator, Lewis Johnson, conducted a routine visit to a jobsite to conduct a compliance investigation. Mr. Johnson observed Mr. Gregg use a table saw, measure, and cut a piece of wood. Mr. Johnson then observed Mr. Gregg nail the wood to the exterior wall of the home at the jobsite. After Mr. Johnson inquired about the work Mr. Gregg was performing, Mr. Gregg ultimately told Mr. Johnson that he was working as a subcontractor for Respondent. Based on Mr. Johnson’s observations, Mr. Gregg was performing construction-related work at the job site. Mr. Johnson then conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Mr. Gregg. Based on the results of his investigation, on May 10, 2017, Mr. Johnson issued a SWO to Respondent for failure to maintain workers’ compensation coverage for its employees. On May 10, 2017, Mr. Johnson hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”) on Respondent. The Records Request directed Respondent to produce business records for the time period of May 10, 2015, through May 11, 2017. While Respondent provided tax returns, it did not provide sufficient business records to the Department. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, May 10, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Johnson’s observations at the jobsite on May 10, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5645 to calculate the penalty. Classification code 5645 applies to work involving carpentry. Ms. Jackson applied the approved manual rates for classification 5645 for the work Mr. Johnson observed Mr. Gregg perform. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $15.91 for the period of May 11, 2015, through December 31, 2017; and $16.92 for the period of January 1, 2016, through June 10, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Mr. Johnson discovered that Mr. Gregg previously held an exemption, which expired on April 26, 2013. Although Mr. Gregg currently has an exemption, his exemption was not in effect during the audit period. On June 6, 2017, the Department issued its first AOPA that ordered Respondent to pay a penalty of $46,087.72, pursuant to section 440.107(7)(d). On August 1, 2017, Petitioner issued the Second AOPA based upon records submitted by Respondent, which reduced the penalty assessment to $14,752.62. After this matter was referred to the Division, on January 23, 2018, Petitioner filed a Motion for Leave to Amend Order of Penalty Assessment and issued the Third AOPA based upon records submitted by Respondent. Based on the Department’s calculation, the record demonstrates that the penalty assessment, based on records provided by Respondent, would be $9,785.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding the following: that Respondent failed to secure and maintain workers’ compensation coverage for Mr. Gregg; and that Respondent shall pay a penalty of $9,785.50.1/ DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2018.
The Issue Whether Petitioner violated Rules and Regulations of the Pinellas County Sheriff’s Office, 3-1.1(002), 3-1.3(066), and 3-1.3(067), and, if so, whether Petitioner should be terminated from his position with the Pinellas County Sheriff’s Office.
Findings Of Fact Based on a review of the case file, the Transcript of the final hearing, and the exhibits entered into evidence, the following Findings of Fact are found. On July 13, 2001, Dominguez was assigned to foot patrol at the K-Mart store in South Pasadena, Florida, as a community police officer. At that time he had been employed by the Pinellas County Sheriff’s Office for approximately sixteen and one-half years. On the evening of July 13, 2001, Dominguez was standing outside K-Mart talking to an employee of K-Mart, Renee Herrington (Herrington). While talking to Herrington, Dominguez observed a white van and a black sport utility vehicle (SUV) parked in front of K-Mart next to a yellow curb. The area in which the vehicles were parked was marked by a faded “no Dominguez observed the vehicles for a time and when no one moved the vehicles, he decided to cite both vehicles for parking violations. He issued a citation to the white van and then proceeded to the black SUV. The SUV had been parked in front of K-Mart by Maryellen Ruvolo (Ruvolo) while she and her niece went into K-Mart to make a purchase. Ruvolo left the vehicle running, and her sister and two nephews remained in the vehicle. Dominguez went to the rear of the SUV and began writing the ticket. Ruvolo’s sister, Eugenia Quinn (Quinn), got out of the SUV and asked Dominguez to not issue the ticket and allow her to move the vehicle. Dominguez refused her requests and gave the ticket to Quinn. Dominguez started walking in the direction of Herrington, who was sitting on a bench approximately 30 yards away from the vehicles. When Ruvolo returned to the vehicle, Quinn gave her the ticket and told her that Dominguez would not let her move the SUV. Ruvolo turned in the direction of Dominguez and shouted, “Have a nice day, you fucking fat bastard.” Dominguez turned around and went back to where Ruvolo was standing. He wanted to confront her about her comment. Ruvulo started to yell after Dominguez went up to her. He arrested her, handcuffed her, and put her in his patrol car. The charge was disorderly conduct. During the confrontation between Dominguez and Ruvolo, none of the members of the public became involved in the dispute and Ruvolo did not incite any members of the public to participate in the dispute. She never physically or verbally threatened Dominguez. Ruvolo’s actions did not invade the right of others to pursue their lawful activities. Herrington went back inside K-Mart and other members of the public were not disrupted in their entering and leaving K-Mart. Quinn asked Dominquez why he was arresting her sister and he told her that he did not get paid enough to put up with what Ruvolo had said. While he was arresting Ruvolo, Dominguez had requested assistance from another deputy sheriff, Kelvin Franklin. When Deputy Franklin arrived on the scene the confrontation was over. Dominguez asked Franklin to go inside K-Mart and get the address of Herrington, who had witnessed the incident. Dominguez did not request Franklin to take a statement from Herrington. On the way to the jail, Ruvolo apologized to Dominguez, and he told her to shut up. Prior to reaching the jail, Ruvolo stopped for a few minutes in a parking lot and met with his supervisor to get some in-service papers. When they reached the jail, Dominguez was advised that there were six persons to be processed ahead of Ruvolo. Dominguez got out of the patrol car and turned off the ignition. He did some paperwork on the trunk of his patrol car while waiting. He left Ruvolo in the patrol car without air conditioning and the windows rolled up for approximately six or seven minutes. He returned to the vehicle and turned on the ignition and waited to be called to take Ruvolo inside the jailhouse. They waited approximately 20 minutes from the time they got to the jail until they entered it. Ruvolo spent approximately five hours in jail and was required to post bail before she could be released. After arresting Ruvolo, Dominguez prepared his incident/offense report and complaint/arrest affidavit. Dominguez admitted during his testimony that neither the arrest report nor the arrest affidavit set forth facts to establish the elements for the offense of disorderly conduct, the crime for which he arrested Ruvolo. Dominguez told the Administrative Review Board (ARB) that he felt that Herrington’s peace had been disturbed. Dominguez did not talk with Herrington between the time he heard Ruvolo make her remarks to him and the time he arrested Ruvolo. When asked why he had not included any statements from Herrington in his report, he replied, “Laziness.” During the ARB hearing, Dominguez stated that he had no excuse for not completing a thorough report and detailing the elements of the crime. He acknowledged the position that he placed the Sheriff's Office in when he did not do a complete and thorough report. Ruvolo and Quinn made complaints to the Pinellas County Sheriff’s Office about Dominguez’s actions. The complaints alleged that Dominguez was rude, intimidating, and unprofessional in his behavior during the July 13, 2001, incident. Ruvolo also alleged her arrest to be false. As a result of the complaints, Sergeant Tim Pelella (Pelella) of the Administrative Investigations Division of the Pinellas County Sheriff’s Office conducted preliminary interviews of Ruvolo and Quinn. During the course of the interview, Ruvolo recognized that she would have to pursue her false arrest claim through the courts. Pellella referred the matter to the commander of the road patrol division for investigation of the non-arrest components of the complaints. The complaints were referred to Sergeant Jay Morey (Morey), Dominguez’s immediate supervisor. Sergeant Morey talked to Dominguez and Herrington, but did not talk to either Ruvolo or Quinn. Morey concluded that he would not sustain the complaint, but his conclusion was never finalized or reduced to writing. The arrest for disorderly conduct was referred to the State Attorney’s Office for prosecution. The arrest report and arrest affidavit were reviewed by Assistant State Attorney Lydia Wardell, who concluded that neither the report nor the affidavit set forth sufficient facts to prosecute the case. As a result, a No Information was filed by the State Attorney’s Office disposing of the charges against Ruvolo, stating: “The facts and circumstances revealed do not warrant prosecution at this time.” As a result of the decision not to prosecute, the Administrative Investigation Division of the Sheriff’s Office retrieved the complaints from Morey and began its investigation of the false arrest complaint. It is the policy of the Sheriff’s Office not to investigate allegations of false arrest until such time as the State Attorney’s Office makes a decision on whether to prosecute. Dominguez was notified that an investigation was being initiated. Dominguez gave a sworn statement to the investigators assigned to the case. Ruvolo and other witnesses also gave sworn statements. After the investigation was completed, Dominguez was given an ARB hearing. In accord with General Order 10-2 of the Sheriff’s Office, at least one member of Dominguez’s chain of command sat on his ARB hearing. Prior to the hearing, the ARB members are given a copy of the investigation conducted by the Administrative Investigation Division. At the hearing Dominguez was permitted to offer a statement, to respond to questions, and to present additional evidence. The ARB made the following determination: On July 13, 2001, Manuel Dominguez, #52303, while on duty in Pinellas County, Florida; did violate the Pinellas County Sheriff's Civil Service Act Laws of Florida, 89-404 as amended by Laws of Florida 90-395, Section 6, Subsection 4, by violations of the provisions of law or the rules, regulations and operating procedures of the Office of the Sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.1 (Level Five Violation), 002, relating to Loyalty, to wit: Members shall maintain their loyalty to the Sheriff's Office and it's [sic] members as is consistent with law and professional ethics as established in General Order 3-2. Synopsis: On July 13, 2001, you failed to abide by the PCSO Code of Ethics, to wit: You acted officiously or permitted personal feelings, prejudices, animosities or friendships to influence your decisions while in the performance of duty as a deputy sheriff. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 066, relating to Performance of Duty, to wit: All members will be efficient in their assigned duties. Synopsis: On July 13, 2001, you failed to accurately document an incident that resulted in the arrest of a citizen of this county. Violate Rule and Regulation of the Pinellas County Sheriff's Office, 3-1.3 (Level Three Violation), 067, relating to Performance of Duty, to wit: All members will be effective in their assigned duties. Synopsis: On July 13, 2001, you effected an arrest which the State Attorney's Office could not prosecute because you were ineffective in your assigned duties. The violations resulted in a cumulative point total of 75 points. A Level Five violation is given a point value of 50 points. A Level Three violation is given a point value of 15 points. The ARB assigned a total of 25 points for the two Level Three violations and 50 points for the Level 5 violation. There were no previous discipline points added. The discipline range for 75 points is from a ten-day suspension to termination. The ARB recommended the maximum penalty of termination. General Order 10-2 of the Pinellas County Sheriff’s Office deals with disciplinary procedures. It provides that the termination procedure to be followed is the same as that of a member who is suspended without pay with certain additional procedures. Only the sheriff has the authority to terminate a member of the Sheriff’s Office. A member can only be terminated “subsequent to an Administrative Investigation Division investigation supported by findings and disciplinary action recommended by a Administrative Review Board, and at the instruction of the Sheriff” that the member be terminated. At the time that the ARB made its recommendation that Dominguez be terminated, Rice, the Pinellas County Sheriff, was out of the state. He had discussed Dominguez’s disciplinary case with Chief Deputy Coats (Coats) prior to leaving the state. Rice had specifically authorized Coats to impose discipline, including termination, upon Dominguez that was consistent with the ARB’s recommendations. Coats advised Rice of the findings and recommendations of the ARB. Rice told Coats that he had no problem with terminating Dominguez. Coats signed the inter- office memoranda for Rice, advising Dominquez of the findings and recommendations of the ARB and advising of the decision to terminate Dominguez from employment with the Sheriff's Office. Coats was instructed by Rice to terminate Dominguez. In his deposition, Rice stated that Dominguez should have been terminated and that it was his decision to approve Dominguez's termination. Dominguez did not know the elements of the offense of disorderly conduct when he arrested Ruvolo. He felt that he could arrest her for her inappropriate comments to him. At the final hearing, Dominguez admitted that based on his long career in law enforcement that he should have known what constituted disorderly conduct. Dominguez was insulted by Ruvolo's name-calling and felt that her words were a challenge to the uniform of a deputy sheriff. Dominguez allowed his personal feelings to influence his decision to arrest Ruvolo.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of Pinellas County Sheriff's Office enter a Final Order finding Manuel R. Dominguez guilty of violating the Rules and Regulations of the Pinellas County Sheriff's Office as set forth in September 27, 2001, inter-office memorandum and upholding the termination of Manuel R. Dominguez from his employment as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 1st day of April, 2002, in Tallahassee, Leon County, Florida. _ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2002. COPIES FURNISHED: William M. Laubach, Esquire Pinellas County Police Benevolent Association 14450 46th Street, North Suite 115 Clearwater, Florida 33762 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34756 Keith C. Tischler, Esquire Powers, Quaschnick, et al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186
The Issue This case concerns the charges made by the Petitioner, City of Clearwater, Florida, against its employee Cleven Wyatt, Respondent, which lead to his termination and dismissal as an employee of that municipality. In particular, through charge one, the Respondent has been accused of violating Rule 14, Section 1(e) of the Civil Service Rules of Clearwater, Florida, by being offensive in his conduct toward a fellow employee. Through charge two, the Respondent is accused of committing a level five offense, within the meaning of the Guidelines for Disciplinary Action, City of Clearwater, Florida, in that he had an unauthorized possession of a knife on City property.
Findings Of Fact The Petitioner in this action is a City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community. Among its powers is the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831 pursuant to Chapter 21153, Special Laws of Florida, 1941. This Ordinance deals with the Career Civil Service System for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. In this instance, the Respondent, Cleven Wyatt, has been charged and dismissed from his employment within the Career Civil Service System of the City of Clearwater under the alleged authority set out in the Issues statement of this Recommended Order, pertaining to charges one and two. In association with charge one, it has further been specified that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt, during a verbal exchange between himself and Billy Harbuck, heavy equipment operator, struck Harbuck in the face with his hands and thereafter pulled a knife and threatened Harbuck physically with the knife by using the words, 'I will cut you.'" Further, the specification to charge two states that, "at approximately 8:45 a.m., September 25, 1980, Mr. Wyatt pulled a knife and threatened Mr. Harbuck physically by using the words, 'I will cut you.'" Having been charged with these violations and in keeping with the remedy afforded, the Respondent, pursuant to Ordinance No. 1831, Section 2-38, of the City of Clearwater, Florida, he elected to have a Hearing Officer conduct a formal hearing to determine the accuracy of those charges placed against him. In turn, the City of Clearwater forwarded the case to the Division of Administrative Hearings for consideration. This arrangement was concluded pursuant to the contract between the Division of Administrative Hearings and the City of Clearwater, to provide a Hearing Officer for proceedings of this type. See Subsection 120.65(6), Florida Statutes. On December 15, 1980, the hearing was conducted. The facts in this case reveal that on the morning of September 25, 1980, the Respondent brought his sanitation truck to the transfer station to dump the contents of that vehicle. When he arrived at the transfer station he was approached by another employee, Billy Harbuck, who stepped up to the truck and began a conversation with Wyatt, in which he accused Wyatt of stealing watermelons that were planted in the area of the transfer station. Wyatt then got out of his truck and continued to engage in this conversation which became heated and in the course of the exchange, Wyatt accused Harbuck of "making love" with Harbuck's girlfriend while in the "break-room" of the transfer station. In addition to the verbal intensity of this dispute, there had been finger pointing by both parties and when Wyatt made his remark about Harbuck's alleged amorous adventures, Harbuck struck Wyatt on the shoulder and Wyatt in turn slapped Harbuck in the face. (It was not proven that Wyatt stole the watermelons. The facts did establish that Wyatt's claim related to Harbuck's social life with his girlfriend was a false claim, in that his visit with his companion did net involve sexual intercourse.) Following the physical encounter, the combatants armed themselves. The sequence of their arming was the subject of testimony in this cause in which there was extreme diversity of opinion among the several witnesses who gave testimony. Having reviewed that testimony at length with a view toward the interest in this case held by those witnesses and in particular the combatants and the resulting effect this has had on their creditability, it is unclear which individual armed himself first. However, it is certain that shortly after the blows were struck, Harbuck grabbed a metal stool from the ground. The stool was approximately three feet high and ten inches in diameter. It was also shown that Wyatt took a knife from his pocket and opened it and brandished the knife in the direction of Harbuck. At the time the Respondent and Harbuck took up their weapons, another employee, James Cheatum, stepped between them and grabbed the stool which Harbuck held in his hands and pushed Wyatt away from the affray. When he looked from Harbuck to the direction of Wyatt, he saw the knife in Wyatt's hand. Harbuck being unable to further pursue this circumstance by using the stool, he then grabbed a shovel which was in his vicinity, but was again unable to take further action because he was restrained by Cheatum and a second employee, Grover Wilson. At the time that Harbuck was attempting to pick up the shovel, Respondent still had his knife drawn. Both of the combatants expressed malice through their demeanor at the point where they were armed with the knife, stool and shovel, and both combatants were in fear of their opponent at that juncture. Neither individual attempted to strike the other individual with a weapon. Furthermore, the knife which the Respondent had possession was not a knife which he carried with him as a matter of course. It was a knife given to him by an employee of the City of Clearwater to make repairs on the Respondent's sanitation truck. After that aspect of the circumstance involving the shovel had occurred, the fight ended and at the insistence of the supervisor at the transfer station, the Respondent departed the area. He was later charged with the alleged acts of misconduct.
Findings Of Fact Respondent holds a certificate as a law enforcement officer, Certificate Number 02-22949. That certificate is currently inactive. Respondent was employed as a deputy sheriff with the Polk County Sheriff's Department in January of 1978. Respondent resigned this position on or about October 22, 1982. On or about September 9, 1982, Respondent was involved in the apprehension and arrest of an individual named James Pitts. A Winter Haven police officer, Dennis Warren, actually effected the arrest of the above suspect on or about September 9, 1982. During the arrest, Pitts resisted Officer Warren and in so doing, Officer Warren sustained injuries to his right hand. The area in which the struggle occurred consisted of loose dirt and gravel. Immediately after the arrest, Officer Warren's uniform was disheveled, dirty and ripped. The knuckles on his right hand were bleeding. Immediately after the arrest, Respondent's uniform was clean, not disheveled and no dirt was present. The dirt and gravel at the scene of the arrest were the type that would adhere to a uniform. After Officer Warren arrested the suspect, Respondent was unable or unwilling to walk the suspect to the police car. Another officer (Bill Stone), walked the suspect to the police car and placed the suspect in the vehicle. Respondent was present during the arrest of James Pitts and observed Officer Warren struggling with said individual. Officer Warren requested Respondent's assistance in the arrest but Respondent failed to provide such assistance. During Respondent's tenure as a deputy sheriff, he failed to assist other officers on several occasions during violent confrontations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing the Administrative Complaint. DONE and ORDERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 18th day of January, 1984.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Ms. Bagley, an African-American, was employed by the City from 1987 until her termination on July 9, 2004. At the time of her termination, she was employed as a Code Enforcement Officer II. On Monday, March 15, 2004,1 Ms. Bagley called her supervisor, Larry Canelejo (Mr. Canelejo), and advised him that she would be late to work because she had to assist her mother. Mr. Canelejo approved her absence. Ms. Bagley's normal work hours on March 15, 2004, were 8 a.m. to 5 p.m., Monday through Friday. On March 15, 2004, she arrived to work at 11 a.m. She did not work through her lunch on that day or stay later to make up the time that she was late. On Thursday, March 18, 2004, Ms. Bagley turned in a time and attendance sheet showing that she had worked from 8 a.m. to 5 p.m. on March 15, 2004. Mr. Canelejo verbally asked Ms. Bagley to turn in a leave slip for the time that she was absent on March 15, 2004. Ms. Bagley did not turn in a leave slip, and Mr. Canelejo sent an e-mail to Ms. Bagley on March 18, 2004, requesting that she do so and indicating that disciplinary action would result for her failure to do so. Instead of turning in a leave slip for her three-hour absence, Ms. Bagley wrote a memorandum to Darrell Smith, Chief of Staff, complaining that she had been requested to submit a leave request for time she was absent from work when other workers who were absent were not required to submit a leave request for their absence. On the morning of Friday, March 19, 2004, Mr. Canelejo sent another e-mail to Ms. Bagley requesting that she submit her time card and leave slip by 11:30 a.m. Ms. Bagley retrieved the time card that she had previously submitted and covered her signature with white-out. She did not submit a leave slip as requested by her supervisor. Mr. Canelejo marked on Ms. Bagley's time sheet that she was absent without leave for three hours on March 15, 2004, and submitted a leave slip for Ms. Bagley showing that she was absent without leave for that time. The time card and leave slip was later changed by the City's personnel office to sick leave for others. On March 17, 2004, Mr. Canelejo received a complaint from the general manager of Wendy's Restaurant located on North 15th Street in Tampa, Florida. The general manager advised Mr. Canelejo that Ms. Bagley had come into the restaurant on three separate occasions demanding that she be given free food for food that she had purchased which she felt was bad. Ms. Bagley did not have receipts for the previously-purchased food, and indicated that other managers in the store had told her that she could get free replacements for the bad food. The general manager advised Mr. Canelejo that other managers at Wendy had not given authorization for Ms. Bagley to receive free food. A co-manager at Wendy's also wrote to the City confirming Ms. Bagley's actions in getting free food. The City's Department of Code Enforcement received a letter dated March 31, 2004, from Hazel Hill, who was the sales floor supervisor at Martin's Uniforms Retail Store (Martin's Uniforms). The City had a contract with Martin's Uniforms to supply uniforms and related items to City employees, including code enforcement employees. Ms. Hill related an incident involving Ms. Bagley on March 12, 2004. Ms. Bagley came to the store, requesting to return some shirts and pants, which she claimed to have received from Martin's Uniforms as part of the 2004 uniform allotment. Ms. Hill inspected the garments and determined that the uniforms could not have been received as part of the 2004 order because the shirts were not the same style as those that had been sent. The 2004 shirts were made of gabardine with two new-style patches, one on each arm. The shirts that Ms. Bagley was attempting to return were made of poplin with only one patch, which had been discontinued. The shirts also appeared to have a yellow tint, which could be attributed to age. The pants which Ms. Bagley was attempting to return had been altered in the waist. The pants which had been sent with Ms. Bagley's 2004 uniform order were not altered in the waist. Ms. Hill also advised that the incident concerning the 2004 uniform order was not the first time that Ms. Bagley had attempted to exchange old merchandise. About four months earlier, Ms. Bagley had tried to return an old jacket for a new one, but Ms. Hill refused to make the exchange. The previous year, Ms. Bagley came to exchange a pair of shoes for which she had no receipt and for which no record of the purchase could be found at the store. On July 9, 2004, the City dismissed Ms. Bagley from her employment. The final decision to terminate Ms. Bagley's employment was made by the Director of Code Enforcement, Curtis Lane, who is an African-American. Mr. Lane based his decision on Ms. Bagley's failure to submit a leave request for the three hours that she was absent on March 15, 2004; submission of a time sheet showing that she worked eight hours on March 15, 2004; the complaints from the employees at a Wendy's restaurant that Ms. Bagley had requested free food while she was in a City code enforcement uniform; and the complaint from Martin's Uniforms that Ms. Bagley tried to get new uniforms by falsely claiming that she was not sent the correct uniforms in her 2004 uniform order. The allegations against Ms. Bagley were investigated by City staff, and, based on the results of the investigations, Mr. Lane believed the allegations against Ms. Bagley and felt that Ms. Bagley's actions demonstrated a lack of honesty and integrity, two traits which are essential for a code enforcement officer. At the time of her termination, Ms. Bagley's employment with the City was subject to a collective bargaining agreement between the City and Amalgamated Transit Union. The collective bargaining agreement provided a grievance and arbitration procedure. Ms. Bagley filed a grievance contesting her termination, which she submitted to final arbitration. On February 15, 2005, an evidentiary hearing was held on Ms. Bagley's grievance before arbitrator Genellen Kelly Pike. On June 15, 2005, Ms. Pike denied Ms. Bagley's grievance. On July 26, 2005, Ms. Bagley filed a charge of discrimination with the Commission, claiming that she was terminated from her employment with the City on account of her race. Ms. Bagley claims that she was discriminated against based on her race because other employees of the Code Enforcement Department were allowed to come in late and either to make up the time on their lunch hours or after work or to not have to make up the time at all. Mr. Canelejo did have a practice of allowing employees to make up their time if they were 15 to 30 minutes late for work. The time could be made up during the employee's lunch hour or at the end of the employee's regularly scheduled work day. There was no practice or policy allowing employees to make up absences as long as three hours rather than requiring them to submit leave slips for the missed time. Ms. Bagley claims that both African-American and Caucasian employees were allowed to make up missed work. Not all employees in the Code Enforcement Department had the same work schedule. Some employees worked ten-hour shifts, Sunday through Wednesday; some employees worked 7:30 a.m. to 4:30 p.m., Monday through Friday; and some employees worked 8 a.m. to 5 p.m., Monday through Friday. Some employees were required to attend neighborhood meetings at night after their regularly scheduled hours, and were allowed to adjust their work schedule to avoid overtime as a result of the meetings at night. The code inspectors used City-owned vehicles in making their inspections. The vehicles were parked in a central location, and the employees picked up the City vehicles each day. Sometimes an inspector would schedule an inspection at the beginning of the inspector's shift. The inspector was not required to report into the office prior to making the inspection, but could pick up the City vehicle and leave from the parking lot. Ms. Bagley took it upon herself to begin keeping notes on when the inspectors would arrive at the office. She noted that some of the inspectors, both African-American and Caucasian, did not arrive at the office at the beginning of their regularly scheduled shift. However, Ms. Bagley had no knowledge if these inspectors had attended a night meeting during that week, if the inspectors had gone to an inspection prior to coming to the office, or if the inspectors had made up their tardiness by either working during their lunch hours or after the end of their regularly scheduled shift. Ms. Bagley just assumed that these employees were not putting in 40 hours per week. She produced no evidence at the final hearing that there were other employees who claimed they worked 40 hours per week, when they did not and were allowed to do so without taking leave. She presented no evidence at the final hearing that African-American employees were treated differently than Caucasian employees. In fact, she claims that both African- American and Caucasian employees were allowed to come in late without having to submit a leave slip for the missed time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the petition because the charge of discrimination was not filed timely and because Ms. Bagley failed to establish that the City discriminated against her based on her race. DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2006.
